These are the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.

Thursday, November 28, 2013

Standing up to coercive bonding guidelines

The first post I wrote for this blog - way back in August 2008 - was a short piece on the need for PR (personal recognizance) bonds in Harris County. A PR bond is nothing more than a promise from a person accused of a crime that he or she will show up in court when ordered (much like your signature on that traffic ticket).

Today, more than five years later, there are too many people locked up in the Harris County Jail for non-violent offenses - mostly driving while intoxicated and possession of marijuana. The lucky ones are able to arrange for a friend or loved one to post a bond so they can fight their case from the outside. Some aren't so lucky and sit in jail for weeks or months while their cases are being litigated.

In the meantime law enforcement demand taxpayers take on more debt and build another jail as the existing jails don't have enough room to hold all of the folks the county insists on keeping behind bars.

What too many of our black-robed officials and prosecutors have forgotten is that a person accused of a crime is innocent unless proven otherwise. That includes those arrested for driving while intoxicated, possessing a baggy of pot, shoplifting and driving with a fake inspection sticker.

There is absolutely no excuse for not issuing PR bonds for folks charged with non-violent offenses who have no prior convictions. The purpose of bail is to ensure a person's appearance in court - not to punish the accused. Instead of looking for reasons to keep someone behind bars, our judges should be looking for reasons to release them pending trial.

Anyone who has done this job for any period of time is well aware of the fact that it is far easier to fight a case when your client is not behind bars. Keeping someone in jail does nothing more than coerce them into pleading guilty in exchange for being released. Who's more likely to wait for the results of a blood test in a DWI case - the guy who posted bond or the guy sitting in the holdover? The prosecutor is more than willing to offer time served (or a few days in jail) to the guy who can't post bond on the theft case while the defendant sitting out in the courtroom has the time to challenge the allegations.

PR bonds would lead to fewer first setting pleas as there would be fewer members on the chain gang to be pled out without bothering to investigate the facts. They would also present a challenge to the bondsmen in Harris County who depend on the judges blindly following the bond schedule to make their living.

Robb Fickman has had enough. Mr. Fickman is on a fast to bring attention to the problem. While the vehicle for his protest may be extreme, his argument is just and right. It is high time to bring an end to "coercion by bond" in Harris County. It is time we all remember that the only presumption we are allowed to make in the criminal courthouse is that the defendant is innocent.

From The "Meaning" of America...

For years, I have observed the chain of orange jump suits come into our courts. I watch people pleading guilty, not long after they have met their appointed counsel. The lawyers who plead multiple clients guilty an hour after they met them, are not truly functioning as defense lawyers. A defense lawyer is duty bound to investigate the law and the facts. Those lawyers who plead multiple clients guilty, not long after meeting said clients, cannot possibly have done an adequate job of investigating the law or the facts. A lawyer who is appointed to represent 6 clients at 9AM, does not have sufficient time to investigate the law and facts for those 6 clients between 9AM and 11AM. Yet we routinely see lawyers who were appointed at 9AM, pleading 6 clients guilty at 11AM. Doing the math, that affords the lawyer no more than 20 minutes tops to work on each client’s case. I suspect if it were our loved one, we would all expect a lawyer to spend more than 20 minutes on our loved one’s case before making even an initial recommendation.

There is no time for these lawyers to interview the client in any meaningful way, interview prospective defense witnesses, investigate potential defenses, investigate the state’s case, or investigate relevant legal issues. That cannot be done in 20 minutes. I refer to this system as the “Harris County Plea Mill”. I am not picking on Harris County, I am aware similar bad systems exist elsewhere. (Nor am I picking on all lawyers who do court appointed work in the county courts. We have some lawyers who, despite the system, do their very best to provide effective assistance. These lawyers are more the exception than the rule.)

I believe the inherently unfair “Plea Mill” stems largely from the incarceration of the accused. The accused remain in jail because they have not been able to hire a bondsman and because your courts will not give them personal recognizance bonds. Logic dictates that people prefer liberty over incarceration.

So, while you're enjoying your turkey, ham or whatever other food is on your table today, give a brief thought to the sacrifice that Robb Fickman is making to bring attention to a problem that happens to "those other people." Criminal defendants aren't anyone's favorite constituency. No one wants to be seen by the voters as "soft on crime." But those folks sitting in jail because they can't post bond are our friends, our neighbors, our co-workers and, sometimes, our family members.

2 comments:

Lee
said...

Paul, I suspect that you already know this but the weakness in the HC Plea mill is unity. If all (or at least a majority) of defendants would plead not guilty and demand a trial the system would clog up overnight & cease to function. The Judges (many of who were former prosecutors) and the current prosecutors depend on disunity among the defendant population and speed in processing cases to move dockets. HC Defense Attorneys need to set their temporal concerns aide and rally their clients to the mindset of a strike before any real chnge can begin.

In reality, all such a move would do is keep larger numbers of defendants in jail waiting for those trials. I wholeheartedly agree about the shysters of the syetm that make hundreds of thousands a year selling people down the river courtesy of their political connections (Polland anyone?), there should be a much lower limit on appointments even if they keep that system, but it won't be those judges sitting jail (you know, many of those judges were defense attorneys) nor will it bother the prosecutors or most of your fellow lawyers...